Contractual Relativism?

In the ever-changing field of employment law, the question often arises as to what exactly makes a contract enforceable when the courts often strike them down anyways.  According to Daniel Lublin, “The answer depends on the purpose the contract is meant to serve.”
In an article written last week in the Metro, Lublin reviews four specific examples and offers the following advice on them:
Independent contractor agreements: When the distinction between employee and sub-contractor becomes hazy, remember, it’s “not what a contract says but how the parties behave.”
Post-employment restrictions:  Avoid the “kitchen sink approach”; homogenous clauses that bargain for more when less would suffice are often not enforced.
Policy manuals: Be careful when using policy as a defence when terminations are challenged.  Consider the circumstances and then decide whether the policy still seems reasonable.
Termination clauses: Avoid ambiguity and respect statutory standards.
To increase the effectiveness of employment contracts consider the following:

  • Employment law is not static.
  • Courts will consider how reasonable contractual obligations are given the circumstances.  If you are unable to do so unbiased, ask a neutral third party for advice.
  • Be as job-specific as possible and avoid the lazy, “kitchen sink approach”.

Overall, remember it’s not always what you sign, it’s what you do.